St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1887-01-14
VOICE OF HE PEOPLE.
GiIfillan's AK Decision.

siiIfillan's AK Decision.
10 the Editor of the Globe.
The discussion OF the causes which led to
the rendering of the majority decision of the
supreme court in the Chauney-Wass case but
ADDS to the damning evidence of its injustice
and lack OF authority or necessity therefor.
1t has developed the alleged fact, that this
law, upon which the majority of the bench
has put such an iniQutOIs construction, was
drawn by Chief Justice Gililian one of that
majority. and it would seem that he of all
others u pom the bench should have been the
last one 10 entertain, much less express, the
doctrines therein set forth. If Justice Gilfl-
Ian was employed to draft that law, and his
ADVICE sought by committee of the legisla-
ture which framed il, he of all other mem
bers upon the bench knew the intent
OF that legislature, and was in duty bound
TO so eonstrue the law as to carry out that
intent, provided always he was under such
circumstances qualified to sit in judgment
thereon.
In securing the services of Justice Gilfllau
then merely an attorney-the committee
undoubtedly desired to have a law drawn so
carefully that it would meet every exgency
Of the case, as we'll as the requirements o.
the constitution, state and federal that would
adequately inforce the collection of taxes due
ana unpaid; but no one can OF will contend
that one object was the sale OF property upon
which all taxes had been paid prior TO sale.
i1SSuAluE. however, That SutsD WIS the 1dCI,
and that Justice Gilhlan drew up an act in
accordance Herewith, he was as q lawyer
bound to inform his clients that the act was
in cOntraventiOn TO the constitution of the
United States in that respect. If, however,
the Legislature did not so intend, it was the
duty of Justice Gilflan to inform his clients
the committeeman the provisions therein
as TO the eXclusiveness Of a judgment eX-
tended 10 all sales, whether made lawfully or
unlawtully whether the owner had paid his
tax or not.
If, then, Justice Gilfillan at that time con-
sidered the act would apply to cases like that
OF Wass, it was his duty to have so Informed
the committee. If be did not then SO con-
slider it is difficult to determine how he could
at later day put upon that act coDstruc-
ton so at variance with his former views and
those OF hi 5 clients-the legislature.
Under these circumstances Justice Gilfllan
was hardly qualified to sit in judgment upon
the Chauncey-Wass case. for while there may
be no statute law to prohibit his so doing,
there is an unwritten law, known to
every possessor of fine sensibihties and
clear judicial cmind, that a judge shall
not sit in judgment upon his own acts or pass
upon questions Ia which he has an interest.
Instances are not wanting where judges of
the supreme court have refused TO sit in
cases which mad come before them while sit
ting on the bench in lower court, and in the
United States court judge cannot sit in any
case where he or any of his relatives have an
interest. 1t would have been far better both
for the state and Justice Gilflian had he re-
fused to sit in the hearing of the Chauncey
Wass action, for in such case the state would
have been saved the disgrace of appearing in
the role OF hlghwayman, while Justice Gill
fillan would have been spared the possibility
of any one raising the question of whether.
in the drawing and subsequent construction
OF this act there was more design than acct
dent.
These remarks are based on the statement
that Justice Gilfiilan drew the act, which he
either at that time or now so terribly miScon-
strueS, and are not intended to undGly re-
fleet upon him as q man. since the writer, Il
common with every good citizen. desires to
see the fair name of the judiciary main
raimed.
Judge Perkins, of Indiana, many years ago
made some remarks which are recalled TO
mind by the decision in the Chauncey- Wass
case: THE power of construction in courts
is 4 mighty one. which uureStrained by set
tied rules, would tend to throw painful I'M
certainty over the effect that might be given
to the most plainly worded statutes, and
render courts in reality the legislative power
of the state. Instances were not wanting to
confirm this. A juGge-made law has over
rode the legislative departments 1t was the
boast Of Chief Justice Pembertou, one of the
judges OF the despot Charles IL, and not the
only one in those days, that he had entirely
outdone parliament in making laws. We
admit that the exercise of an unlimited discre-
ton may in a particular instance be attended
with effect, still history informs US that it has
often been the case that the arbitrary discre-
ton of judge was the law of a tyrant and
warn US that it may be SO again."
What stranger case of judge-made law can
be presented than that afforded by the major
ity decision in CaaunceY Us. Wass, wherein
even the majority of the courts do not pre-
tend their decision is in accord with the in
tent OF the legislature. The construc-
ton put upon the act makes the
act unconstitutional in SO far as it applies to
the Chauucey-Wass case, and the court of
necessity should have so decided.
In the year 1888. John Marshall, then chief
justice of the United States supreme court,
said: mo question can be brought before
Judicial tribunal Of greater delicacy than that
which involves the conStitutionality of leg
isative act. If they become indispensa-
bly, necessary to the case the court mnst
meet and decide them, but if the case may
be determined on any other points q just
respect for the legislature requires that
the obligations of its laws should not be I'M
necessarily and wantonly assailed." 2
Marshall 479.
nFhe decision in Chauncey vs.. Wass does
most certainly unnecessarily and wantonly
aSsail those rights guaranteed to every citizen
of the United States under the law enacted
by them-the CONSTITUENCIES well as the
very act itself, for the act construed in the
Wass case provided for proceedings and
judgment against property the tax upon
which was due and unpaid, and not to any
case where no tax was due or even levied.
When Justice Gilfllan stepped upon the
bench, he, in common with the other mem
berS thereof took an oath to support the con-
stitution of the United States aud of the
state of Minnesota, also to discharge the
duties of his Office faithfully and impartially
according to his best learning, Judgment and
discretion, and it is difficult to determine
how ia
case Herewith, especially if he was the
author of the law under discussion unless it
be upon the hypothesis that he has no con-
ception Of private or property rights.